Ltumasia Leshorono v Jahazi Marine Limited (Cause 1 of 2013) [2013] KEELRC 590 (KLR)
The bottom line
#A Mombasa employment court ruled a 19-year security guard's redundancy was lawful but awarded him severance and meal allowances worth Kshs 182,296.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness of the redundancy under section 40 of the Employment Act
The redundancy was lawful; the Respondent substantially complied with section 40.
The Labour Officer was consulted and advised on the redundancy; the employees were informed and individual letters issued. On the seniority/skill/ability/reliability criterion, the burden lay on the Claimant to lay a basis showing non-compliance, which he failed to discharge. Substantial compliance was therefore established.
Commencement date and continuity of employment
Employment ran continuously from 1 February 1993 despite the Respondent's claim of a 2000 change of shareholding.
The Respondent's witness asserted no transfer of employees or liabilities after the 2000 amalgamation, but admitted records showed the Claimant was employed in 1993. The Respondent failed to produce employment records, facts peculiar to it; the Court found continuous service from 1993 and imposed the associated liabilities on the Respondent.
Entitlement to severance pay
Severance pay at the statutory rate of 15 days per completed year for 19 years, totalling Kshs 147,296/-.
The statutory minimum applies absent a contractual agreement for a higher rate; the Claimant did not point to any such agreement. Applying the formula of basic salary plus house allowance divided by 26, multiplied by 285 days, the award is Kshs 147,296/-. The Respondent's calculations were erroneous.
Unpaid meal allowances
The meal allowance became an implied term through custom; awarded at the admitted rate of Kshs 1,000/- per month for 35 months, totalling Kshs 35,000/-.
The claim was not grounded on statute or express contract but on practice. The Respondent admitted paying Kshs 1,000/- monthly in lieu of meals from 2009/2010 but failed to produce employment records. A reasonable, certain and notorious custom becomes an implied term, enforceable on clear evidence; the admitted sum was awarded.
Legal principles established
#- Severance pay under section 40(1)(g) of the Employment Act at 15 days pay per completed year of service is a statutory minimum which parties may increase by agreement.
- A consistent, reasonable, certain and notorious practice or custom of an employer becomes an implied term of the employment contract enforceable on sufficient and clear evidence.
- Daily rate for computing employment entitlements is (Basic Salary plus House Allowance) divided by 26.
Court orders
#- 1.Award of 15 days severance pay for 19 years (285 days) of Kshs 147,296/-
- 2.Award of unpaid meal allowance of Kshs 35,000/-
- 3.Total award of Kshs 182,296/-
- 4.Release to the Claimant of the Kshs 46,702/- deposited with the County Labour Office
- 5.Respondent to pay the balance of the award to the Claimant
- 6.No order as to costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment causes (Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- George Nyandiko v China Jiangxi International Kenya Limited [2016] KEELRC 839 (KLR)[2016] KEELRC 839 (KLR)26 May 2016
Cite this brief
#Cite this brief
Caselaw, "Ltumasia Leshorono v Jahazi Marine Limited (Cause 1 of 2013) [2013] KEELRC 590 (KLR)", Case Analysis (2013). Not stated in the judgment (Cause before the Industrial Court, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/590/eng@2013-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.